ICC accuses Israel of genocide: ignoring evidence and self-defense claims – opinion

The French have a saying: Plus ca change, plus c’est la meme chose – namely, the more things change, the more they stay the same. It applies with peculiar force to the Jewish people. Regardless of time, place, or circumstance, when disaster strikes or things go wrong, history demonstrates that the Jewish people are the world’s chief scapegoats.

Those who have swallowed the ancient tropes and hate Jews on account of some supposed global conspiracy, or excessive economic power, or imagined hostility to Christianity or Islam – such people will believe Jews capable of anything, no matter how ludicrous.

On November 21, the International Criminal Court (ICC) declared to the world that it believed Israel, under the direction of Prime Minister Benjamin Netanyahu, deliberately set out to slaughter the civilian population of Gaza. It would be difficult to imagine anything less likely.

It was on May 20, 2024 that Karim Khan, a British jurist and the ICC’s chief prosecutor, applied to the court to issue international arrest warrants against three Hamas leaders (all now dead), and also against Netanyahu and then-defense minister Yoav Gallant. His request in respect to the Israeli leaders was backed by a catalog of alleged war crimes and crimes against humanity.

In issuing arrest warrants for Israel’s prime minister and his former defense chief, the ICC seems to have adopted Khan’s accusations as fact. The court charged them with being criminally responsible for a “widespread and systematic attack against the civilian population of Gaza.” 

ICC claims genocide

They claim that an Israeli blockade on Gaza resulted in a lack of food, water, electricity, fuel, and medical supplies which “created conditions of life calculated to bring about the destruction of part of the civilian population in Gaza, which resulted in the death of civilians, including children, due to malnutrition and dehydration”.

The judges appear to believe that Netanyahu engaged in a “systematic” operation “calculated” to slaughter the civilian population.

Together with the warrants, the ICC issued a press release setting out the rationale for the judges’ decision. It contains not a single indication that, in attacking Hamas, Israel was engaged in a justifiable act of self-defense, in accordance with international law, following the barbarous onslaught by Hamas on Israel on October 7, 2023. That, too, was not mentioned.

Even more to the point, the judges’ justification does not refer to the fact that Hamas had embedded itself within the civilian structure of Gaza. It says nothing, either, of the extraordinary steps taken by Israel to warn the population of impending military operations.

The ICC’s legal proceedings bear a remarkable similarity to those portrayed by Gilbert and Sullivan in their comic opera Trial by Jury. In its opening moments the Usher sternly instructs the jury: “From bias free of every kind this trial must be tried.” A moment later, totally enamored of the young lady bringing the case, he tells them to pay no heed to the “ruffianly” defendant: “What he may say you needn’t mind.”

Israel’s case, to which the ICC judges paid no heed, was convincingly placed before them on August 5 by Dr. Rafael Bardaji on behalf of the High Level Military Group (HLMG), an association of military leaders and officials from NATO and other democratic countries. It tore Khan’s case to shreds.

In Khan’s application to the ICC, he states as a fact that Israel indulged in “collective punishment of the civilian population.” He substantiates this by asserting that Israel “deliberately” starved them, “willfully” caused them great suffering, serious injury, and death, and “intentionally” directed attacks against them, murdering and persecuting them. He makes these assertions without offering any proof that the actions he lists were deliberate, willful or intentional.

AS THE HLMG made clear in the first paragraph of its 28-paragraph submission, its observations were based on solid, first-hand evidence. “The HLMG conducted an in-country assessment of the Gaza conflict in July 2024, visiting IDF military headquarters from the top level; humanitarian aid installations and operations; units down to battalion level of command; and a visit inside Gaza.” 

It first tackles Khan’s allegations that Israel blocked food supplies from reaching the Gazan population, deliberately starving them. The HLMG describes visiting crossing points built by the IDF since the war began specifically to facilitate increased volumes of aid entering the Gaza Strip.

The Erez crossing was completely destroyed by Hamas on October 7. “Since then, two vehicle crossing points in Erez were established by the IDF. We observed roads inside the Gaza Strip that were built by the IDF specifically to enable delivery of aid laterally and south to north.”

The submission continues: “The IDF operates according to a clear chain of command. The directives and commands we reviewed did not include any order to starve civilians, or to use issues related to humanitarian assistance as a method of warfare, and in fact, included clear statements regarding the IDF’s legal obligations toward the civilian population.”

Its conclusion: “Our assessment shows that the IDF is operationalizing the Israeli government’s stated policy to ‘flood Gaza with aid’… we believe this is counter indicative of and inconsistent with any plan or intent to employ starvation as a method of warfare at any stage in this conflict.”

The submission then turns to Khan’s assertion in his arrest warrant application that Israel imposed “a total siege over Gaza,” demonstrating from known and provable facts that at no stage was Gaza under siege.

Finally, the submission describes the IDF military justice and accountability mechanism that the HLMG found “consistent with the highest standards of our own armed forces.” The group singled out for praise the IDF Fact Finding and Assessment Mechanism (FFAM), which examines any incident that could raise a charge of possible illegal conduct or military procedural misconduct. 

“There are currently approximately 300 incidents being actively investigated by the FFAM,” it says, “with many more which they have received initial information about. To our knowledge, no other armed forces have established such a permanent system but would benefit from doing so.”

The ICC describes its own remit in these terms. “The ICC intervenes only in situations where states themselves are either unwilling or unable to genuinely investigate and prosecute the perpetrators of genocide, war crimes, and crimes against humanity.”

The HLMG submission states: “We do not believe there is a credible basis to conclude Israel lacks the ability or will to implement national investigatory and judicial processes that are comparable to other countries and their militaries.” 

The judges of the ICC have not only ignored compelling evidence from an impeccable source that challenges the charges brought by their prosecutor, but they have misdirected themselves as to the court’s competence to act against the leaders of a democratic state with a fully functioning judicial system of its own.The ICC has shot itself in the foot.

The writer is the Middle East correspondent for Eurasia Review. His latest book is 'Trump and the Holy Land: 2016-2020'. Follow him at: www.a-mid-east-journal.blogspot.com